Leena W/o Sunil Kumar v. Mustafa Syed Muhammed; Abdul Rahiman Paramban; New India Assurance Co. Ltd.; United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944 MACA NO. 1614 OF 2012** **AGAINST THE AWARD DATED 13.1.2012 IN OPMV 723/2006 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT(PETITIONER IN O.P.(MV):723/2006:** LEENA W/O SUNIL KUMAR, ARUKAD VEEDU, CHERAI KARA, PALLIPURAM VILLAGE BY ADVS. REJI GEORGE ANUPAMA JOHNY ## **RESPONDENTS/RESPONDENTS IN O.P.(MV NO.723/2006):** 1 MUSTAFA SYED MUHAMMED S/O SYEDAMU HAJI, PUTHIYEDATH HOUSE P.O, VALAKOLAM, KUZHICHERA 676508 2 ABDUL RAHIMAN PARAMBAN S/O HUSSAIN PRAMBAN, KOTTAKKAL KARAYIL PARAMBU, KOTTAKKAL VILLAGE, MALAPPURAM 686514 3 NEW INDIA ASSURANCE CO. LTD DIVISIONAL OFFICE NO II, SHAFEER COMPLEX KANNOOR ROAD, CALICUT 673001 4 UNITED INDIA ISNURANCE CO. LTD MUNICIPAL BUILDING MAIN ROAD, NORTH PARUR 683513 BY ADVS. V.JAYAPRADEEP T.C.SOWMIAVATHY BY ADV.T.C SOWMIAVATHY - R3, BY ADV.SRI. V. JAYAPRADEEP - R4 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.1614 OF 2012 2 ## **JUDGMENT** Dated this the 25[th] day of May, 2022 This appeal has been filed against the award passed in O.P. (M.V) No.723/2006 on the file of Motor Accidents Claims Tribunal (in short Tribunal), Perumbavoor. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) towards compensation for the injury sustained by the appellant/claimant (hereinafter be referred as the claimant) in a motor accident occurred on 01.1.2006 at about 11.00 a.m., while the claimant was riding on the pillion of motorcycle, due to hit by car bearing Reg.No.KL-10-U9292 near St.George Jacobite Syrian Church, Nedumbassery in AluvaAngamaly National Highway. It is alleged that accident happened due to the rash and negligent driving of the 2[nd] respondent. 1[st ] respondent is the owner of the car and 3[rd] respondent is the insurer of the offending vehicle. 4[th] respondent is the insurer of the motorcycle on which the claimant was travelling. The claim is for a total amount of Rs.2,03,000/-. 2. Before the Tribunal, 1[st] and 2[nd] respondents remained ex- MACA NO.1614 OF 2012 3 parte. 3[rd] respondent/insurer filed written statement admitting the policy coverage with respect to the vehicle No.KL-10-U-9292. Rashness and negligence on the part of the 2[nd] respondent is denied. 3. It is contended that the accident happened due to the rash and negligent riding of the motorcycle on which claimant was riding. It is further contended that the motorcycle was overloaded and there is contravention of the provisions of Section 128 of the Motor Vehicles Act, by allowing to travel two pillion riders on the motorcycle. Hence, 3[rd] respondent is not liable to pay the compensation to the claimants. It is also contended that the rider and owner of the motorcycle KL7/AR-3332 on which the claimant was travelling were not made parties. Hence claim petitions is bad for non-joinder of necessary parties. 4. This claim petition has been tried along with O.P.(M.V) No.722/2006 and 721/2006 and a common award was passed. 5. Claimant in this case was examined as PW1. Exts.A1 to A9 were marked from the side of the claimant. There was no evidence from the side of the respondents. Tribunal on evaluating the evidence MACA NO.1614 OF 2012 4 and facts and circumstances found 25% of the contributory negligence on the part of rider of motorcycle bearing Reg.No.KL-7/AR-3332 and claimant was allowed to realise 75% of the assessed amount. Accordingly, only Rs.77,555/- was awarded as compensation, though total compensation of Rs.1,03,407/- was arrived at. 6. Dissatisfied with the award passed by the Tribunal, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 7. Service of notice as against respondents 1 and 2 is complete and there was no appearance. The respondents 3 and 4 appeared through counsel. Heard the learned counsel for the claimant and also the learned Counsel for the respondents 3 and 4. Lower court records were called for and perused. 8. The main grievance of the claimant is that, there was a finding of contributory negligence at 25% on the part rider of motor cycle and out of award amount 25% was deducted. 9. In **New India Assurance Co. Ltd v. Pazhaniammal [2011 (3) KLT 648]** , it has been held by this court that as a general rule, production of charge sheet is prima facie sufficient evidence to MACA NO.1614 OF 2012 5 prove negligence in a claim under Section 166 of the MV Act and it can be accepted as evidence of proof of negligence and if at all any of the parties wanted to dispute the same, the burden is upon such party to adduce oral evidence and discredit the charge sheet. In spite of producing Ext.A2 charge sheet against the second respondent ,no evidence has been adduced by the respondents to controvert the charge. 10. Tribunal found contributory negligence at 25% on the part of the rider of the motor cycle in view of the fact that claimant was carrying her 6 year old child on the pillion. In **National Insurance Co.Ltd. v. Vimala & Others [2017 ACJ 2695: 2017 KHC 7522]** it has been held that breach of rules in driving without helmet and driving with 3 pillion riders by itself can not be taken as contribution of negligence. Since, the charge sheet has been filed against the 2nd respondent, the burden is upon the respondents to discredit the charge sheet by adducing convincing evidence. In the absence of any evidence to discredit the charge sheet, as per the settled position above stated the Tribunal ought to have accepted the charge sheet to find the negligence on the part of driver of the offending vehicle. 11. The award passed by the Tribunal would show that MACA NO.1614 OF 2012 6 contributory negligence is presumed as the motorcycle was overloaded with two pillion riders in contravention of the Provisions of Section 128 of the Motor Vehicles Act. But there is no findings as such by the Tribunal that travelling with two pillion riders has actually contributed to the accident. Hence, 25% contributory negligence found on the part of the rider of the motorcycle is not sustainable. Moreover, claimant in this case was a pillion rider and hence it is a case of composite negligence as far as the claim of claimant is concerned and hence she can raise the claim against any of the tortfeasors. 12. In this context, Chapter IX of the Law of Torts by Ratanlal and Dheerajlal updated 26[th] Edition by Justice G.P.Singh dealing with Joint and Several Tort-Feasors is relevant to be extracted: _“All persons who aid, or counsel, or direct or join in the committal of a wrongful act, are joint tort-feasors. Persons are not joint tort-feasors merel because their independent wrongful acts have resulted in one damnum. To constitute a joint liability the act complained of must be joint and not separate. The joint liability arises under three circumstances:-_ _(i) Agency, when one person employs another to do an act which turns out to be a tort._ MACA NO.1614 OF 2012 7 _(ii) Vicarious liability, i.e. the liability arising from relations, such as master and servant, principal and agent, guardian and ward etc., which is discussed in Chapter VIII._ _(iii) Joint action – where two or more persons combine together to commit an act which amounts to a tort._ _When persons, not acting in concert, by their wrongful acts, committed substantially contemporaneously, cause damage to another person, they are not joint tort-feasors but several or concurrent tort-feasors. The damage caused by several tort-feasors may be the same or indivisible or it may be distinct referable to each tort-feasor. In case where the damage caused by each of the several tort-feasors is distinct, each of them is liable only for the damage attributable to his own act. The legal position in respect of several tort-feasors causing the same or indivisible damage is now nearly the same as in respect of joint tort-feasors_ . Chapter II of Law of Torts by John Salmond dealt with Joint ## Wrongdoers as follows: _“Joint wrongdoers are jointly and severally responsible for the whole damage. That is to say, the person injured may sue any one of them separately for the full amount of the loss; or he may sue all of them jointly in the same action, and even in this latter case the judgment so obtained against all of them may be executed in full against any one of them (h). How far there is any right of contribution or indemnity as between the wrongdoers themselves we shall consider later._ MACA NO.1614 OF 2012 8 _2. Persons are to be deemed joint wrongdoers within the meaning of this rule whenever they are responsible for the same tort-that is to say, whenever the law for any reason imputes the commission of the same wrongful act to two or more persons at once. This happens in at least three classes of cases-namely, agency, vicarious liability, and common action._ 13. In this context, **T.O.Anthony v. Karvarnan and others : Manu/SC/7181/2008 : 2008(3) KLT 431 : (2008) 3 SCC 748** , a two Judge Bench of the Apex Court while dealing with Sections 166 and 168 of the Act discussed the distinction between composite negligence and contributory negligence. Paragraph 6 of such decision is relevant in this context to extract which reads thus: _“Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a_ MACA NO.1614 OF 2012 9 _person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.”_ 14. In **Khenyei v. New India Assurance Co.Ltd and Ors : MANU/SC/0582/2015 : 2015(2) KLJ 593** , a three Judge Bench of the Apex Court dealt with composite negligence in cases of compensation under the Act. In that case, the injuries were sustained by the claimant when two vehicles, that is bus and Trailor Truck collided with each other. It was a case of composite negligence where injuries have been caused to the complainant by combined act of joint tort-feasors. It was held by the Apex Court that in a case of accident caused by negligence of joint tort-feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act are liable. In such case, the liability is always joint and several and the extent of negligence of joint tort-feasors in such a case is immaterial for MACA NO.1614 OF 2012 10 satisfaction of the claim of the plantiff/claimant and need not be determined by the court and if in a case all the joint tort-feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort-feasor vis-a-vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In a case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant. 15. In this case, claimant was the pillion rider and the offending vehicle ie. car hit the motorcycle and out of it she sustained injuries. Hence, as far as the claimant is concerned, this is a case of composite negligence and it is open for her to proceed against any of the tortfeasors. So finding of 25% contributory negligence and deducting 25% of assessed amount towards contributory negligence is not sustainable in law and is hereby set aside. 16. Next contention is with regard to the compensation awarded by the Tribunal. Monthly income of Rs.2.500/- claimed has been accepted by the Tribunal. That can be approved. In **Raj Kumar** MACA NO.1614 OF 2012 11 **v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** general principles relating to compensation in injury cases has been dealt with in detail and it has been held therein that the provision of the Motor Vehicles Act, 1988 makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. It is also held that a person is not only to be compensated for the physical injury, but also for the loss which injured has suffered as a result of such injury. 17. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (Special damages) and non pecuniary damages (general damages). In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been discussed. In MACA NO.1614 OF 2012 12 personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries. 18. In cases of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earning (and other gains) which the injured would have made had he not been injured, comprising : - Loss of future earnings on account of permanent disability, Future medical expenses, Loss of amenities (and/or loss of prospects of marriage) and Loss of expectation of life (shortening of normal longevity). 19. The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of expectation of life involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. MACA NO.1614 OF 2012 13 The injuries sustained by the claimant as per Ext.A4 is as follows: _1. Abrasion right upper eye lid with loss of skin_ _2. Multiple small laceration left frontal region scalp and upper eye lid_ _3. Abrasion nose and below nostril_ _4. Laceration with avulsion over right heel_ _5. Compound fracture right calcaneum of ankle_ _6. Fracture both bones of left leg_ She had undergone 17 days inpatient treatment also. Ext.A7 discharge summary shows admission from 1.1.2006 to 13.1.2006. Ext.A8 is another discharge summary showing admission again on 8.2.2006 and discharge on 10.2.2006. As per Ext.A9 again she was admitted from 25.4.2009 to 28.4.2009. Medical bills for Rs.58,707/has been produced. She is a coolie aged 30 years. Compound fracture right calcaneum of ankle and fracture both bones of right leg will prevent her from going for work for about 6 months. Hence 6 months loss of earnings can be awarded to the claimant in spite of 4 months taken by the Tribunal. So towards loss of earning claimant is further entitled to get Rs.5,000/- (15,000-10,000) deducting the amount already awarded. 20. According to the learned counsel for the claimant, the claimant had undergone 17 days inpatient treatment but only Rs.1,700/- has been awarded by the Tribunal towards bystander MACA NO.1614 OF 2012 14 expense. The accident was in the year 2006, hence Rs.200/- per day can be taken as bystander expense. Hence, towards bystander expense the claimant is entitled to get Rs.1,700/- (Rs.200x17) more. Towards pain and suffering an amount of Rs.25,000/- has been claimed. But the Tribunal awarded Rs.20,000/- only. According to the learned counsel she had sustained very serious injuries and she had also undergone surgeries. So taking into account, the nature of injuries and the period of treatment and procedures of treatment undergone by the claimant Rs.25,000/- claimed is seems to be reasonable. Deducting the amount already awarded, balance would be Rs.5,000/- (Rs.25,000-20,000). Towards loss of amenities Rs.10,000/- is awarded by the Tribunal. The claimant could not produce any disability certificate in spite of the fact she had sustained very serious injuries. So taking into account the facts and circumstances, an amount of Rs.20,000/- is awarded towards loss of amenities. Deducting the amount already awarded, balance would be Rs.10000/- (Rs.20,000-10,000). Hence, the claimant is entitled to get enhanced compensation of Rs.21700/-. Contributory negligence found against the rider of the motorcycle has already been found against. Hence amount deducted by the Tribunal on that account has also to be MACA NO.1614 OF 2012 15 added. That is Rs.25852/-. So total amount would be Rs.25852+21700=47552/- rounded to Rs.47550/-. 21. In the result, appeal allowed by enhancing compensation to an amount of **Rs.47,550/(Rupees forty seven thousand five hundred and fifty only)** which will carry interest @ 6.5% per annum from the date of petition. The 3rd respondent/insurer shall satisfy additional compensation granted in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment. Claimant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Sd/- **M.R.ANITHA JUDGE** SMF